Mr. Specter (for himself
and Mr. Lieberman) introduced the
following bill; which was read twice and referred to the
Committee on the
Judiciary

A BILL

To create a Federal cause of action to determine whether
defamation exists under United States law in cases in which defamation actions
have been brought in foreign courts against United States persons on the basis
of publications or speech in the United States.

1.

Short title

This Act may be cited as the
Free Speech Protection Act of
2008.

2.

Findings

The Congress finds the following:

(1)

The freedom of speech and the press is
enshrined in the first amendment to the Constitution of the United
States.

(2)

Free speech, the
free exchange of information, and the free expression of ideas and opinions are
essential to the functioning of representative democracy in the United
States.

(3)

The free
expression and publication by journalists, academics, commentators, experts,
and others of the information they uncover and develop through research and
study is essential to the formation of sound public policy and thus to the
security of the people of the United States.

(4)

The first
amendment jurisprudence of the Supreme Court of the United States, articulated
in such precedents as New York Times v. Sullivan, 376 U.S. 254 (1964), and its
progeny, reflects the fundamental value that the people of the United States
place on promoting the free exchange of ideas and information, requiring in
cases involving public figures a demonstration of actual malice—that is, that
allegedly defamatory, libelous, or slanderous statements about public figures
are not merely false but made with knowledge of that falsity or with reckless
disregard of their truth or falsity.

(5)

Some persons are obstructing the free
expression rights of United States persons, and the vital interest of the
people of the United States in receiving information on matters of public
importance, by first seeking out foreign jurisdictions that do not provide the
full extent of free-speech protection that is fundamental in the United States
and then suing United States persons in such jurisdictions in defamation
actions based on speech uttered or published in the United States—speech that
is fully protected under first amendment jurisprudence in the United States and
the laws of the several States and the District of Columbia.

(6)

Some of these actions are intended not only
to suppress the free speech rights of journalists, academics, commentators,
experts, and other individuals but to intimidate publishers and other
organizations that might otherwise disseminate or support the work of those
individuals with the threat of prohibitive foreign lawsuits, litigation
expenses, and judgments that provide for money damages and other
speech-suppressing relief.

(7)

The governments
and courts of some foreign countries have failed to curtail this practice,
permitting lawsuits filed by persons who are often not citizens of those
countries, under circumstances where there is often little or no basis for
jurisdiction over the United States persons against whom such suits are
brought.

(8)

Some of the plaintiffs bringing such suits
are intentionally and strategically refraining from filing their suits in the
United States, even though the speech at issue was published in the United
States, in order to avoid the Supreme Court’s first amendment jurisprudence and
frustrate the protections it affords United States persons.

(9)

The United States
persons against whom such suits are brought must consequently endure the
prohibitive expense, inconvenience, and anxiety attendant to being sued in
foreign courts for conduct that is protected under the first amendment, or
decline to answer such suits and risk the entry of costly default judgments
that may be executed in countries other than the United States where those
individuals travel or own property.

(10)

Journalists,
academics, commentators, experts, and others subjected to such suits are
suffering concrete and profound financial and professional damage for engaging
in conduct that is protected under the Constitution of the United States and
essential to informing the people of the United States, their representatives,
and other policy-makers.

(11)

In turn, the people of the United States
are suffering concrete and profound harm because they, their representatives,
and other government policymakers rely on the free expression of information,
ideas, and opinions developed by responsible journalists, academics,
commentators, experts, and others for the formulation of sound public policy,
including national security policy.

(12)

The United States
respects the sovereign right of other countries to enact their own laws
regarding speech, and seeks only to protect the first amendment rights of the
people of the United States in connection with speech that occurs, in whole or
in part, in the United States.

3.

Federal cause of
action

(a)

Cause of
action

Any United States
person against whom a lawsuit is brought in a foreign country for defamation on
the basis of the content of any writing, utterance, or other speech by that
person that has been published, uttered, or otherwise disseminated in the
United States may bring an action in a United States district court specified
in subsection (f) against any person who, or entity which, brought the foreign
suit if the writing, utterance, or other speech at issue in the foreign lawsuit
does not constitute defamation under United States law.

(b)

Jurisdiction

It shall be sufficient to establish
jurisdiction over the person or entity bringing a foreign lawsuit described in
subsection (a) that such person or entity has filed the lawsuit against a
United States person, or that such United States person has assets in the
United States against which the claimant in the foreign action could execute if
a judgment in the foreign lawsuit were awarded.

(c)

Remedies

(1)

Order to bar
enforcement and other injunctive relief

In a cause of action
described in subsection (a), if the court determines that the applicable
writing, utterance, or other speech at issue in the foreign lawsuit does not
constitute defamation under United States law, the court shall order that any
foreign judgment in the foreign lawsuit in question may not be enforced in the
United States, including by any Federal, State, or local court, and may order
such other injunctive relief that the court considers appropriate to protect
the right to free speech under the first amendment to the Constitution of the
United States.

(2)

Damages

In
addition to the remedy under paragraph (1), damages may be awarded to the
United States person bringing the action under subsection (a), based on the
following:

(A)

The amount of any
foreign judgment in the applicable foreign lawsuit.

(B)

The costs,
including all legal fees, attributable to the foreign lawsuit that have been
borne by the United States person.

(C)

The harm caused to
the United States person due to decreased opportunities to publish, conduct
research, or generate funding.

(d)

Treble
damages

If, in an action
brought under subsection (a), the court or, if applicable, the jury determines
by a preponderance of the evidence that the person or entity bringing the
foreign lawsuit at issue intentionally engaged in a scheme to suppress rights
under the first amendment to the Constitution of the United States by
discouraging publishers or other media not to publish, or discouraging
employers, contractors, donors, sponsors, or similar financial supporters not
to employ, retain, or support, the research, writing, or other speech of a
journalist, academic, commentator, expert, or other individual, the court may
award treble damages.

(e)

Expedited
discovery

Upon the filing of
an action under subsection (a), the court may order expedited discovery if the
court determines, based on the allegations in the complaint, that the speech at
issue in the foreign defamation action is protected under the first amendment
to the Constitution of the United States.

(f)

Venue

An action under subsection (a) may be
brought by a United States person only in a United States district court in
which the United States person is domiciled, does business, or owns real
property that could be executed against in satisfaction of a judgment in the
foreign defamation lawsuit giving rise to the action.

(g)

Timing of
action; statute of limitations

(1)

Timing

An
action under subsection (a) may be commenced after the filing of the defamation
lawsuit in a foreign country on which the action is based.

(2)

Statute of
limitations

For purposes of
section 1658(a) of title 28, United States Code, the cause of action under
subsection (a) accrues on the date on which the defamation lawsuit in a foreign
country on which the cause of action is based is filed.

4.

Applicability

This Act applies with respect to any foreign
lawsuit that is described in section 3(a) and is brought in the foreign country
concerned before, on, or after the date of the enactment of this Act.

5.

Construction

Nothing in this Act limits the right of
foreign litigants who bring good faith defamation actions to prevail against
journalists, academics, commentators, and others who have failed to adhere to
standards of professionalism by publishing false information maliciously or
recklessly.

6.

Definitions

In this Act:

(1)

Defamation

The
term defamation means any action for defamation, libel, slander,
or similar claim alleging that forms of speech are false or have caused damage
to reputation.

(2)

Foreign
country

The term foreign country means any country
other than the United States.

(3)

Foreign
judgment

The term
foreign judgment means any judgment of a foreign country,
including the court system of a foreign country, that grants or denies any form
of relief, including injunctive relief and monetary damages, in a defamation
action.

(4)

United
States

The term United
States means the several States, the District of Columbia, and any
commonwealth, territory, or possession of the United States.

(5)

United States
person

The term United
States person includes a United States citizen, an alien lawfully
admitted for permanent residence to the United States, and a business entity
incorporated in, or with its primary location or place of operation in, the
United States.